One of the linchpins of Project 2025 — the collection of policy proposals that some in Trump world have now warmly embraced after spending six months claiming they had nothing to do with it — is the planned replacement of up to 50,000 career civil servants with political appointees loyal to President-elect Donald Trump. But it’s not an idea confined only to Project 2025: Trump’s own “Agenda 47” calls for an “executive order restoring the president’s authority to fire rogue bureaucrats,” and Trump himself said of civil servants, “They’re destroying this country. They’re crooked people, they’re dishonest people. They’re going to be held accountable.”
This position is at odds with American public opinion. A survey conducted by the nonpartisan Partnership for Public Service, released last March, found that 87% of Americans said that “having a nonpartisan civil service is important for having a strong American democracy.”
But can Trump do it? There are good reasons to doubt that he can.
The key to the plan is something called Schedule F, which the Trump administration created out of thin air in an executive order published on Oct. 21, 2020. That order reclassified into a new “Schedule F” all “career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character.” Such employees would lose their employment protections and could thus be fired at will. (Schedule F had been in development for years but it had been delayed first by fears of alienating large swaths of government employees, and then by the pandemic.)
This order never went into effect, because Trump lost the election and President Joe Biden immediately rescinded it. The Biden administration went even further, though, pushing through a regulation that was finalized on April 9, 2024, to “reinforce and clarify longstanding civil service protections and merit system principles.”
That step means that, at a minimum, the Trump administration would have to issue and finalize a new regulation to replace the 2024 one, because presidents can’t overrule a final regulation by executive order. The rulemaking process usually takes months; the 2024 Biden rule was first proposed in October 2023 and not finalized until seven months later.
Now, there is one workaround, which is that the administration could fast-track an “interim final rule.” However, that interim rule will immediately be challenged by the public employee unions, whose members are understandably upset about being fired. A coalition of 28 labor unions challenged the Trump executive order when it came out, saying it could affect up to 500,000 federal employees nationwide. (It was also challenged by good governance groups.) These plaintiffs would surely get an injunction while the case is heard, because once you get fired and replaced, it’s impossible to get unfired.
Even if courts move quickly to adjudicate the interim rule, it will likely take a minimum of four to six months to be adjudicated, for reasons I’ll discuss in a moment, and then there will be appeals probably all the way to the Supreme Court. (The Trump administration may even request expedited review.) For those reasons, I can’t imagine this part of Project 2025 being implemented until at least next summer, but more likely the end of next year. Credit the Biden administration for that.
But what would be the final result of a challenge? This is harder to assess, since so much depends on the politics of the federal court system, including the Supreme Court.
Statutorily, the civil service as we know it today was created in 1883 by the Pendleton Act, passed to reform government and end the patronage system where political allies and donors were rewarded with cushy government jobs. The Pendleton Act envisioned a civil service made up of experts who knew their fields, had to pass exams to demonstrate competence and could not be fired without due process.
But in 1978, another law, the Civil Service Reform Act, created a loophole, now contained in Section 7511 of Title 5 of the U.S. Code, that exempted from civil service protections anyone “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character,” the same language used in the Trump order from 2020.
In other words, to fire someone, all the president has to do is “except” them from the civil service (aka the competitive service) and designate their role as being confidential or policy-related. Which is exactly what Schedule F ordered government agencies and the Office of Personnel Management to do.
This position, however, flies in the face of a canon of statutory interpretation that statutes should be read in a way that makes sense. If an interpretation of a law carves out an exception so large that it makes the law meaningless, that’s probably the wrong interpretation. That would be the case here: Reading the 1978 law in this way would effectively nullify the entire Pendleton Act.
There’s also no precedent for this interpretation. From 1978 until now, presidential administrations have understood that loophole very narrowly, exempting only noncareer political appointees hired for a single presidential administration — which is what the Biden regulation says.
In addition, firing 50,000 employees is a massive act that falls under the Supreme Court’s new “major questions” doctrine. It is based on a very obscure, hitherto unnoticed provision of the law, it is a radical change from current practice, and it has a significant impact. This would mean, under conservative jurisprudence, that it is quasi-legislative in nature and not deserving of court deference. And as the late Justice Antonin Scalia memorably held, Congress “does not hide elephants in mouseholes.”
Schedule F is exactly such an elephant, contained in a mousehole of a statute that no one has ever understood in this way.
Having said that, the case is by no means open and shut. A MAGA judge — someone like Aileen Cannon, perhaps — could plausibly read the U.S. Code the way that the Trump administration wants, and there are at least two such justices on the Supreme Court. As with many of Trump’s coming actions, ultimately the fate of good governance (or the “deep state,” if you prefer) may rest with three Supreme Court justices, and as we’ve seen, there’s no predicting how they will rule on anything.
At the very least, the purge won’t happen overnight. Trump’s order will be challenged immediately, a subsequent regulation will take months to draft and review. From there, what will happen is anyone’s guess — like so much else in this strange and unprecedented time.
This article was originally published on MSNBC.com